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Doe v. Pulaski County Special School District: The Eighth Circuit Jeopardizes an Individual's Protected Speech by Adhering to the Incorrect Standard in Distinguishing a True Threat from Protected Speech

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TitleDoe v. Pulaski County Special School District: The Eighth Circuit Jeopardizes an Individual's Protected Speech by Adhering to the Incorrect Standard in Distinguishing a True Threat from Protected Speech

AuthorsCarter, Justin F.

JournalCreighton Law Review

Volume37

Pages385

Date2004

Metadata

Abstract

INTRODUCTION

When the United States Supreme Court added true threats to the list of communications the First Amendment does not protect in Watts v. United States, it failed to announce any type of test courts should use to distinguish true threats from protected speech. Without any test, the federal courts of appeals have endeavored to determine for themselves when the government may constitutionally regulate an individual's speech to prevent threats of violence. The circuits which have created a test unanimously agree courts should use an objective test to determine if a statement was a true threat or protected speech. While the same circuits require the speaker's intent to communicate the threat be determined first, the circuits are split with regards to the viewpoint a court should consider the statement: that of a reasonable person acting as the speaker of the purported threat, or that of a reasonable person acting as the recipient of the purported threat. Currently, the First, Third, Seventh, Ninth and Tenth Circuits follow a reasonable speaker standard in which the court asks if a reasonable speaker would have foreseen that the recipient would interpret the communication as a true threat. Meanwhile, the Second,Fourth, Sixth, Eighth and Federal Circuits follow a reasonable recipient standard in which the court asks if a reasonable recipient would have viewed the communication as a serious expression of intent to harm. Additionally, the Fifth and Eleventh Circuits currently utilize an objective viewpoint neutral approach...